Recently, the False Claims Act (FCA) was amended by the Patient Protection and Affordable Care Act of 2010 (PPACA). In a five-word alteration, the PPACA has greatly expanded the reach of the statute, in terms of how a case must be proven, who has to prove it, and what circumstances, if any, will bar the proceeding from going forward." Additionally, new constitutional and policy concerns stem from the increased governmental discretion in deciding which suits can and cannot proceed.6 The problems resulting from the government's expanded discretion go to the very nature of qui tam actions themselves.
This article will address the constitutionality of the PPACA's expansion of the FCA and will argue that the FCA, which was one of the latest informer statutes in Anglo-American jurisprudence, is no longer an informer statute at all. It will include a historical discussion of the constitutionality of the FCA in Part II, and an in-depth discussion of the PPACA amendments to the FCA in Part III. Part IV explains why the PPACA changes to the FCA have transformed the nature of the act from an informer's statute, a type of legislation granted Article III standing by the Supreme Court, to a private attorney general statute,
A.G. Harmon, Bounty Hunters and Whistleblowers: Constitutional Concerns for False Claims Actions After Passage of the Patient Protection and Affordable Care Act of 2010, 2 AM. U. LAB. & EMP. F. 1 (2011).